Opinion
February 6, 1950.
Present — Carswell, Acting P.J., Johnston, Adel, Wenzel and MacCrate, JJ. Settle order on notice.
In an action to settle a trustee's accounts and to construe a will, interlocutory judgment modified on the law by striking paragraphs III and IV therefrom and by substituting in place thereof paragraphs providing (1) that there is evidence in the will and scheme of distribution of intention to distribute the remainder of the trust created for Maria Elenora Massimo to her issue per stirpes and not per capita; and (2) that upon the death the principal of the trust vested in three equal shares in defendant Leone Massimo and defendants-appellants Vittorio Massimo and Elisabetta Massimo. As thus modified, the judgment is unanimously affirmed, insofar as appeal is taken, with costs to all parties filing briefs payable out of the estate. The findings of fact and conclusions of law I and II are affirmed. Conclusions of law III and IV are reversed and in place thereof new conclusions consistent herewith will be made. The stirpital distribution provided for in the will in the event that the granddaughter of the testatrix had died without issue ( Matter of Lawrence, 238 N.Y. 116) is more than sufficient as "a very faint glimpse" of intention ( Matter of Farmers' Loan Trust Co., 213 N.Y. 168, 174) for the conclusion that similar distribution was contemplated by testatrix in bequeathing the principal on the death of her granddaughter to the "issue" of the latter ( Matter of Farmers' Loan Trust Co., supra; Central Hanover Bank Trust Co. v. Pell, 268 N.Y. 354). The equality of treatment accorded by testatrix to the grandchildren, who were her prime beneficiaries, and to whom the corpus of the respective shares might have been paid, is additional evidence that the substituted "issue" were to take as representatives and not as a class. ( Matter of Durant, 231 N.Y. 41; Matter of Lawrence, supra, p. 120; Matter of Sherman, 267 App. Div. 765; Matter of Maxwell, 261 App. Div. 1104, affd. 286 N.Y. 591.)